JUDGMENT
S.K. Kulshrestha, J.
1. The above two appeals are directed against the judgment dated 2-1-1989 of the learned Additional Sessions Judge, East Nimar, Khandwa, in Sessions trial No. 45 of 1988, by which the appellant Santosh in — Criminal Appeal No. 25 of 1989 has been convicted for an offence under Section 304, Part II of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for five years and to pay a fine of Rs. 1000/- and in default of payment of fine, to suffer further R.I. for six months, while the appellants in Criminal Appeal No. 38 of 1989 have been convicted under Section 304, Part II read with Section 149, I.P.C. and sentenced to R.I. for two years and fine of Rs. 500/- and in default of payment of fine, to suffer further, R.I. for three months, and also under Sections 323/ 149 and 148, I.P.C. and sentenced to suffer R.I. for three months on each count. The sentences have been directed to run concurrently and have been made subject to set off under Section 428, Cr. P. C.
2. Appellant Santosh was tried for offences under Sections 302, 302/149, 323/149 and 148 of the Indian Penal Code while the other appellants under Sections 302/149, 323, 323/149 and 148 of the Indian Penal Code.
3. The prosecution story, in brief, was that in relation to share in the crop, there was a dispute between accused Sitaram and Jagdish (P.W. 2), in respect whereof, accused Natwarlal, brother of Sitaram, had asked Jagdish to settle the accounts and told Jagdish that his brother Sitaram had called him for the purpose, but Arjun (P.W. 3), brother of Jagdish, had asked the accused to come to their house for settlement thereof. It was alleged that the accused Natwarlal had left the place — quite enraged on account of the attitude of the said two prosecution witnesses and after a short while thereafter, returned with accused Sitaram, Hareram, Ramanlal and Kailash. These persons, armed with lathis, then started assaulting Jagdish and Punamchand and when Shivlal arrived, the appellant Santosh picked up a stone and threw it from the roof of his house which landed on the head of Shivlal. Shivlal fell down unconscious. On account of the assault, Jagdish and Punamchand also received injuries. Shivlal was taken to the police station Chhaigon Maklian where report Ex. P-4 was lodged by Jagdish. Injured were forwarded for medical examination and Dr. D. R. Ahirwar (P.W. 1) examined their injuries and gave reports — Exs. P-1, P-2 and P-3. Since the condition of Shivlal was critical, he was referred to the District Hospital, Khandwa and thereafter to the M. Y. Hospital, Indore. Shivlal, however, succumbed to his injuries on 5-2-88 while under treatment in M. Y. Hospital. Post-mortem examination of his body was conducted by Dr. G. S. Mittal (P.W. 14), who gave his opinion that Shivlal had died on account of the head injuries sustained by him.
4. During investigation, spot map Ex. P-5 was prepared by S.H.O. Ramsingh (P.W. 15), who also took samples of bloodstained and plain earth vide Ex. P-7. The stone which had been used in causing — injury to the deceased was seized from the spot under seizure memo Ex. P-8. Bloodstained clothes of Shivlal were seized vide Seizure memo Ex. P-6. Accused were arrested vide memorandum Exs. P-17 to P-21, sticks were seized vide seizure memo Exs. P-22 to P-26 and the — seized articles were sent for examination to the Forensic Science Laboratory. Report Ex. P-29 was received from the F.S.L. and after examination of the prosecution witnesses and recording their statements, –charge-sheet was filed in the Court.
5. The accused denied the charges and claimed to be innocent. The accused also examined Dr. R. P. Gupta (D.W. 1) in their defence. On trial, the learned Additional Sessions Judge convicted and sentenced the accused, as stated above.
6. Learned counsel for the appellants has submitted that firstly an offence under Section 304, Part II, I.P.C. was not made out even if the entire prosecution evidence was taken at its face value and in any case, the appellants, other than the appellant Santosh could not have been convicted for the offence, if any, committed by Santosh with the aid of Section 149. The learned counsel for the appellants has further submitted that even if it is held that some offence has been committed by these appellants, their sentence deserves to be reduced to the period already undergone by them in the facts and circumstances of the case. Learned Govt. Advocate, on the other hand, has supported the judgment of the trial Court and has pointed out that the eye-witness account of the incident duly corroborated by prompt F.T.R. and the medical evidence clearly establishes the guilt of the appellants and the appeals deserve to be dismissed.
7. As per the ocular testimony projected through Jagdish (P.W. 2), Arjun (P.W. 3), Santosh (P.W. 4) and Punamchand (P.W. 5), it is clear that while the appellants Ramanlal, Kailash, Hareram, Sitaram and Natwarlal were engaged in thier riotous conduct in assaulting Jagdish (P.W. 2) and Punamchand (P.W. 5), the deceased Shivlal had arrived and the appellant Santosh, who was on the roof of the house, had picked up a stone and thrown the same on him, with the result, the stone had landed on the head of Shivlal. Shivlal was immediately thereafter examined by Dr. D. R. Ahirwar (P.W. 1) who had found a lacerated wound 3″ x 1″ x 1/2″ over the frontal region of his skull, situated transversely 2″ above the mid forehead towards the frontal region with bleeding present. According to the testimony of Dr. Ahirwar, the general condition of Shivlal was critical bad and he was vornitting blood. His pupils were dilated and considering the gravity of the injury, he was referred for treatment to the District Hospital, Khandwa. Dr. Ahirwar has recorded the injury in his report Ex. P-2. After the death of Shivlal, autopsy on his body was performed by Dr. G. S. Mittal (P.W. 14) and as per his opinion, Shivlal had died of coma due to head injury described by him in the post-mortem report Ex. P-28. The F.I.R. Ex. P-4 lodged promptly after the incident also clearly corroborates the version of Jagdish (P.W. 2). It is, therefore, fully established by the prosecution that while the deceased Shivlal had arrived on the scene of occurrence, appellant Santosh had picked up a stone and had thrown the same on him from the roof of his house which had landed on the head of Shivlal and caused injury to which he had later succumbed.
8. Learned counsel for the appellants submits that even if it is believed that the appellant Santosh had been guilty of throwing stone and causing injury to Shivlal in the manner alleged by the prosecution, the act could not constitute an offence under Section 304, Part II of the Indian Penal Code of which he has been convicted by the trial Court, but only an offence punishable under Section 325, I.P.C. In support of his contention, the learned counsel has referred to the decision of this Court in Bhuresingh v. State of M.P. (1989) 2 MPWN 237 and to another decision in Bapu v. State of M.P. 1982 Jab LJ (SN) 7. In Bhuresingh’s case, a quarrel had ensued in a betrothal ceremony in which the accused had hurled a stone which had hit the head of Roomal and upon intervention by the deceased, the accused had also assaulted him. It was observed that since stone had not been seized, its size and weight could not be gathered and what emerged from the evidence was that the stone was hurled at random without being aimed at any particular part of the body. It was in these facts that it was observed that the act of the accused would fall under Section 325 of the Indian Penal Code. In Bapu v. State of M. P. (supra), the report of the doctor did not indicate that the injury was sufficient in the ordinary course of nature to cause death and the incident had occurred all of a sudden.
9. In the present case, facts are clearly distinguishable. It has been established by the prosecution that when Shivlal had arrived, the accused had picked up a stone and dropped it on his head from the roof of his house, from which it can be safely inferred that the accused had the knowledge that he by his said act was likely to cause death of Shivlal. The seizure memo Ex. P-8 clearly indicates that it was a large stone weighing about 15 Kilograms. Thus, from the size of the stone used in causing the injury and the manner in which it was thrown from the roof of the house on the deceased, there is clear indication that the accused fully knew that he by his said act was likely to cause death of Shivlal. Under these circumstances, the trial Court, in my opinion, has in no way erred in convicting the appellant Santosh of offence under Section 304, Part II of the Indian Penal Code.
10. The next question that arises for consideration is as to whether the other appellants could be held constructively liable for the said act of Santosh. It is clear from the prosecution evidence, indeed even from the F.I.R., that Santosh was not a member of the assembly when the other accused had gone to the house of Jagdish (P.W. 2) and Arjun (P. W. 3) armed with lathis to belabour them. The act of Santosh was clearly an isolated act unconnected with the purpose or object of the unlawful assembly formed by other appellants. There is no evidence to suggest that accused Santosh had joined the other accused persons and had participated in assaulting the other prosecution witnesses. What has been alleged against Santosh is simply that he while he was on the roof of his house, picked up a heavy stone and dropped it on Shivlal who had arrived there. Thus, no evidence has been brought on record to indicate that the common object of the assembly formed by the other appellants was to cause death of Shivlal and that it was in furtherance of the said object that Santosh had acted as a member of the assembly to cause such death. The injuries caused to other witnesses by the other appellants did not give any indication that the common object of this assembly of accused was to cause death of Shivlal or that the act of the appellant Santosh was in prosecution of any such common object of this assembly or that the members of the unlawful assembly had any knowledge about — likelihood of such an act being committed. It is clear that the act of the appellant Santosh was his individual act unconnected with the common object of the unlawful assembly formed by the other appellants. Under these circumstances, the other appellants cannot be held — guilty of offence under Section 304, Part II with the aid of Section 149 of the Indian Penal Code. With regard to the formation of the assembly and causing injury to Jagdish and Punamchand, there is sufficient evidence on record as per the account of the incident given by the eyewitnesses and the reports Ex. P-1 and Ex. P-3 of Dr. Ahirwar coupled with his testimony in the Court. Therefore, the conviction of the appellants in Criminal Appeal No. 38 of 1989 for offences under Sections 323/149 and 148 of the Indian Penal Code does not call for any interference.
11. Learned counsel for the appellants has referred to the testimony of Dr. D. R. Ahirwar (P.W. 1) and to that of Dr. R. P. Gupta (D.W. 1) to show that the accused Natwarlal had sustained a fracture of left radius near wrist as per report Ex. D-9A while as admitted by Dr. Ahirwar (P.W. 1), accused Natwarlal, Hareram, Ramanlal and Sitaram had also received injuries in the same transaction, which the prosecution has failed to explain. In order to seek explanation of injuries of accused from the prosecution, it is necessary first to show that the injuries were of a nature as were capable of being noticed by the prosecution witnesses. It is clear from the evidence of Dr. Ahirwar that the accused Natwarlal had three bruises on his hands and tenderness, accused Hareram had a small abrasion on his left hand finger tip, accused Ramratan had abrasions on his ankle, knee, and skull while accused Sitaram also had two abrasions. All the injuries were minor and even the crack fracture in the hand of accused Natwarlal was not such as could have been noticed by any prosecution witness. The non-explanation of the injuries, in the facts and circumstances of the case, therefore, does not affect the prosecution case adversely in any manner.
12. The learned counsel has also submitted that accused Santosh has undergone incarceration of one year as he was an under-trial prisoner from 29-1-88 till he was released on bail in this appeal on 7-1-89, and, therefore, at this distance of time, it would not be proper to send him back to prison to serve out his sentence. From the evidence of the prosecution, it is clear that the appellant had picked up a heavy stone and had thrown it down from the roof of his house on the deceased. It would, therefore, not be proper to reduce the sentence of appellant Santosh to the period already undergone by him. However, keeping in view the fact that the said appellant has faced the agony of the trial and during the pendency of this appeal for a period of more than a decade, the sentence need not, at the same time, be very severe. I am, therefore, of the view that the sentence of 2 years’ R.I. coupled with the sentence of fine awarded by the trial Court would be sufficient to meet the ends of justice.
13. Insofar as appellants Ramanlal, Kailash, Hareram, Sitaram and Natwarlal are concerned, since they have not been found guilty of offence under Section 304, Part II read with Section 149, I.P.C. for which they were awarded 2 years’ R.I. and fine of Rs. 500/- and only conviction for offences under Sections 323/149 and 148, I.P.C. has been maintained, for which under each count, they have been awarded 3 months’ R.I. to run concurrently, with the benefit of set off under Section 428, Cr. P. C, they are not required to undergo any further sentence as each one of them has been in jail from 30-1-88 to 27-6-88, a period of more than 3 months.
14. In the result, Criminal Appeal No. 25 of 1989 is partly allowed and while the conviction of Santosh son of Sitaram for offence under Section 304, Part II of the Indian Penal Code is maintained, the sentence of R.I. for 5 years awarded to him by the trial Court is reduced to R.I. for 2 years and the sentence of fine and the sentence in default of payment of fine awarded by the trial Court is maintained. The appellant Santosh shall be entitled to set off under Section 528, Cr. P, C. and he shall surrender to his bail bonds to serve out the remaining part of his sentence.
15. Criminal Appeal No. 38 of 1989 is partly allowed. The conviction of appellants Ramanlal, Kailash, Hareram, Sitaram and Natwarlal for offence under Section 304, Part II read with Section 149 of the Indian Penal Code and the sentence of 2 years’ R.I. and fine of Rs. 500/- awarded to them by the trial Court is set aside. Their conviction for offences under Sections 148 and 323/149, I.P.C. and the sentence of 3 months’ R.I. awarded to them under each count is maintained, but since they are entitled to the benefit of set off under Section 428, Cr. P. C. and have already undergone incarceration for a period of more than three months as undertrial prisoners, they have served out the said sentence dud, therefore, they need not surrender. Their bail bonds shall stand discharged.